Supreme Court Says Anti-Violent Video Game Law Violates The First Amendment

from the okay,-is-this-settled-now? dept

Finally. For years now, various states have tried to put in place anti-violent video game laws. Every time they do so, the laws are challenged in court and every single time they're found to be First Amendment violations. None of these cases went to the Supreme Court, however, until last year, when (then) Governor Arnold Schwarzenegger (star of tons of violent movies) decided to waste a lot of money that California doesn't have, in order to appeal lower court rulings, at both the district and appeals court levels, that found California's anti-violent video game law unconstitutional.

So, finally, the Supreme Court has weighed in... and it has agreed with every other court on this matter and found such laws to be unconstitutional restrictions on expression and free speech (pdf). The ruling, written by Justice Scalia, is long, but notes that while the Court has allowed blocking of obscene speech, that's a limited category, and violence is not the same thing as obscenity. It also notes that children, contrary to the opinion of some, do enjoy First Amendment protections as well, and there aren't special rules for them. Quoting an earlier case (Erznoznik), Scalia notes: "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

The majority clearly paid attention to the briefs in the case, concerning the long history of children being exposed to violence:

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

The court goes on to note violence in all sorts of other media that children experience. It then dismisses the claim that video games are somehow "different" because they're interactive, pointing to things like "choose-your-own-adventure" stories. Scalia also takes direct aim at Justice Alito (who concurs, but disagrees with the reasoning) for highlighting how "disgusting" some violent video games are, noting:

JUSTICE ALITO recounts all these disgusting video games in order to disgust us -- but disgust is not a valid basis for restricting expression.

Of course, all of this makes me wonder why obscenity gets a special exception to the First Amendment. Reading through the ruling, it seems to keep saying that obscenity is a special classification of speech, but refuses to explain why it's different. If anything, this ruling suggests that this court can't really answer that question if it came up today. Obscenity is just different because it is.

The court also rejects the (widely disputed) evidence by anti-violent video game professor Craig Anderson, by noting (as many of us have) that the research does not show what many of Anderson's supporters insist it does show. That is, nowhere in the research is it proven that violent video games cause kids to act more aggressively. At best, the research shows a correlation, and other evidence suggests that other factors may be leading to the aggression, rather than the video games. Thankfully, it looks like Anderson's totally ridiculous claim that because the researchers who signed his brief in this case had more papers published, it meant their research was more credible, gets completely ignored by the court.

The other opinions are interesting, if not particularly compelling. Justice Alito, as noted, agrees with the final ruling, but does seem really worried that violent video games just might be evil. Justice Thomas dissented, and his basic argument is that parents can restrict the free speech rights of minors. That's true, to some extent... but that power is not universal, and that has nothing to do with the government restricting such rights, whether or not parents wish it to be restricted. Also, the opinion reads rather... old-fashioned, with him calling back to Puritanical days when fathers had "absolute powers" and children were considered "innately sinful." He admits that we've gotten past that, but that doesn't mean laws that view the world in that manner shouldn't be allowed. Justice Breyer also dissents, and seems to also be persuaded that violent video games are evil, and thus says that the law is permissible in an effort to "protect the children."

All in all, though, another strong First Amendment ruling from the Supreme Court. It still strikes me that this court struggles with the idea that obscenity has a special exception to the First Amendment, which also makes me wonder how it will deal with the next round of copyright/First Amendment cases that it will be facing, starting with Golan. I fear, given the court's past discussions on copyright, that while it seems to have a strong First Amendment view towards most things, that it will ignore the First Amendment when it comes to copyright issues. Hopefully not, but it does feel like there's significant cognitive dissonance going on when it comes to the intersection of copyright law and the First Amendment.

Re: Good...

What about the kids who got more parenting from the clerk at best buy than they ever did from their parents.

I'm not saying this isn't a good ruling. I'm just saying that my kid can probably play with anyone whose parents have opinions on parenting at all. Even if they are completely failing at this point (toddlers), just that they are conscious that they can do a bad job means they'll probably get it right eventually.

I'm concerned for the kids whose parents don't care at all. Who have no boundaries already...

Is it wrong for the people to help those children with boundaries? I don't think so.

It's a sad day when we have to rely on Best Buy's new corporate policy regarding the voluntary refusal to sell to minors.

My question is: what effect does this have on retailers who refuse to sell mature games to minors? do they have the right to restrict access, or can we finally stop getting carded for buying mature games? Would they be guilty of suppressing free speech for refusing to sell a violent video game to a minor? It happens all the time in Maryland, to the point where at places like Target, they have to SCAN your ID into the system.

Re: Sales

> My question is: what effect does this have on
> retailers who refuse to sell mature games to minors?

None. A private business is free to set it's own policies. All this ruling did was say the government is prohibited from banning these sales through force of law.

The movie ratings system is analogous. The theaters are private businesses and they've all voluntarily agreed to abide by the MPAA's ratings system. So when they refuse to sell a ticket to an R-rated movie to a 12-year-old, that's perfectly fine. But if the government were to step in and require through force of law, there'd be constitutional problems.

As much as I believe in free speech, and as much as I don't believe that violent video games make children violent, I cannot agree with the Supreme Court's ruling that California violated the First Amendment when it banned the sale of video games to minors without parental consent. The state of California is free to ban the sale of any item to minors without parental consent for any reason. They ban pornography, alcohol and tobacco to kids, as well as driver's licenses, marriages and tattoos (and maybe guns - not sure). The fact that these laws are in place demonstrates California's sovereignty to restrict sales to minors, and it is hypocritical to say that some of the aforementioned laws are legal but not all of them.

Every time I read someone's opinion on this matter, they make it sound like the issue at stake was a complete prohibition on the production and sale of violent video games to anyone. If that had been the case, then obviously it would have been wrong. But that was not the issue. People also were only considering the matter to be "Are violent video games dangerous to children." This was also not the issue. The issue is: "Does a state have the right to require parental consent before allowing the sale of a good or service to a minor?" If you take the violent video games out of the equation and simply consider that question, the answer has to be "Yes". Minors are under the care and responsibility of their parents, and if the people of California are concerned about how easy it is for their kids to get their hands on something that the parents don't want them getting their hands on, they are free to elect congressmen who put into place laws that enforce a parent's right to parent. It was unconstitutional for the Supreme Court to violate California's sovereignty.

I asked myself, "Is there a situation where the shoe would be on the other foot for me, a time when I would definitely want this law stricken?" The quickest answer was, what if California put into place a law prohibiting the sale of religious literature (including Bibles) to minors without parental consent. At first I thought, "No! That would be terrible!" But then I realized that: A) I could still buy a Bible for my kid and give it to him, B) if I was really upset I could elect different congressmen to change the laws, or C) I could move to a state with different laws. At the end of the day, my kid still could get the banned item (Bible or video game), I'd just have to be there when he bought it. Is that really a violation of "free speech"? I don't see how. As a parent I have the right to take away a video game (or a Bible or ANYTHING) from my kid. How is taking it away from him later different from preventing it from being sold to him in the first place?

Instead, the Supreme Court has violated yours and my right to raise our kids and run our state in a manner we see fit.

And if your rebuttal to me starts with, "But video games are different than tattoos!", you've completely missed the point and need to read paragraph 2 more carefully.

Introduction
As a general rule, the owner of private property is free to restrict expressive activitites of others on the property. You are under no First Amendment obligation to admit people into your living room and then listen to them blow off about any topic of their choice. Similarly, an owner of a restaurant has no duty to allow persons who dislike the food she serves into the restaurant so the person can annoy customers or dicourage others from eating there.

Yet, almost every rule as its exceptions, and this rule is no exception to that rule. [...more...]

Understanding the “State Action” doctrine is key to understanding civil rights protections under the U.S. Constitution.

Re: Re: Good...

It's fair to be concerned regarding parents who don't care at all. However, how many laws would we need to "protect" these children? Why stop at keeping them from subversive media? You should probably make sure they aren't watching much TV, or listening to the "wrong" type of music, or reading inappropriate books - and don't get me started on foreign comics - have you seen what they publish in Japan?

I do agree that as a society, with good social connections and role models, we can still positively "help" others.

Even without this law as a potential additional shield, Best Buy is not the only gatekeeper out there protecting the children. It would be a sad day if we were required to rely on Best Buy (or any retailer) for anything, really.

Parenting is a tough job and not everyone is up to it. Playing morality whack-a-mole via our legal system is not going to make it easier.

Re: Re:

Re: (Ignoring Free Speech for a larger view)

However, how much burden do you wish to put on a parent by doing this? First if you use so many examples, you have to set the age that is allowable to restrict to. I do not know about California, but some states combined with federal laws, you have mulitple stages of adulthood. It may be legal in one state to marry at 16, but not drive until 17, and of course, no booze until 21. In another, maybe they add smoking at 18.

So, what age do we set for this? For a restriction on your hypothetical bible ban? 15? 16? 17? 18? 19? 20? 21? Do you even have to stop at 21? Can I ban the sale of -item- from you until you are 25, 30, 50, or 90 without parental concent?

Then there is the blief that parental concent will stop the behavior. If your kid went to thier friends house, and played a game you forbad, can you force prossicution of the parent? Granted that is not what the law calls for, but it goes back to the assertation of perfectly enforcing parental rights in the rearing of your child.

Regional chains would have to do a lot more focused training, and of course, online stores are screwed.

In the end, it is up to the parent to activly keep from the child that which they do not want the child to have, not to have a law requiring thier permission for whatever -item- the child wants. Video Games, Junk Food, religious lit, Darwin's Origins, Soda, Cell Phones, no lines to be drawn?

Finally, what exactly is your child doing to have 60$ a month to buy the most offensive game on the shelf in such a way that you, as a parent, have no knowledge of it? A child can hide a piercing, a tattoo, smoking and drinking. It is harder to hide playing of a game at home. (And if you will bring up that they can play it elsewhere, go back to paragraph three)

Re:

Minors are under the care and responsibility of their parents, and if the people of California are concerned about how easy it is for their kids to get their hands on something that the parents don't want them getting their hands on, they are free to elect congressmen who put into place laws that enforce a parent's right to parent.

How is enforcing government non-intervention in a form of expression violating my right to raise my kids? Just because there's no law for or against video games with violent content doesn't mean that I still can't take the actions you outlined above, SCOTUS is maintaining that regardless of what people think, Constitutionally speaking, the government can't pass laws restricting it.

Think of it this way, there's no law requiring children to not watch R-rated films, and somehow theaters and parents have found ways to enforce these internal rules on their own.

Re:

My question is: what effect does this have on retailers who refuse to sell mature games to minors? do they have the right to restrict access, or can we finally stop getting carded for buying mature games? Would they be guilty of suppressing free speech for refusing to sell a violent video game to a minor? It happens all the time in Maryland, to the point where at places like Target, they have to SCAN your ID into the system

They're free to do as they please, and I imagine they will continue to do so. This only matters for laws requiring such policies.

Copyright? Too long?

Hrm.. Justice Thomas sounds like the man to go to to keep any copyright extensions from getting enacted. Since the Constitution is a "Written Instrument" and the "Meaning does not alter" then the original 14+14 enacted should still be in effect.

Re:

"Every time I read someone's opinion on this matter, they make it sound like the issue at stake was a complete prohibition on the production and sale of violent video games to anyone. If that had been the case, then obviously it would have been wrong. But that was not the issue. People also were only considering the matter to be "Are violent video games dangerous to children."

Have you read some of the issues here? How do you define violent video games for minors is the first question that was asked. How do you define a game that is "too violent" for one person, but not violent enough for another? Why should the state be involved at all?

I'll name 4 games that are quite controversial:

Call of Duty
Team Fortress 2
Sonic the Hedgehog
Mortal Kombat

Out of all of these games, how do you effectively ban a game from being sold to a minor by the state? All produce varying degrees of violence (the first two are FPS. One is modern style graphical killing, the other stylized.) but that doesn't mean a child should be banned from a game.

All of your persecution ignores a very basic fact:
The ESRB is voluntarily enforced and the government doesn't have to regulate the game sales market. It can't ban a game as too violent as done in Australia. And if people want certain types of games, ID is required.

Quite frankly, if you want to know more about this, Joe Lieberman gave this exact speech in the 1993 talks between Nintendo and Sega when they were the most dominant forces in gaming. Out of the millions of people that play games, violence has actually gone down with minors with the wide variety of games.

The fact remains that the Supreme Court did not overstep. The volunteer "army" still works. We don't need to ban books "for our own safety".

Re: Re: Sales

Which is interesting, as in Europe it seems to be the other way around - we require our governments to do this to give them legal force, however misguided. But then we seem to have f-all constitutional protections...

Re:

"But video games are different than tattoos!", *because* video games /are/ different to tattoos. If tattoos were just done in henna and would come off eventually, then no, you shouldn't be able to restrict them as that is protected speech. But a tattoo is 'for life' (laser treatment notwithstanding) and involves an actual health risk which a minor may not be equipped to deal with. Don't try and compare the shock value of say 'Carmaggeddon' with the risk of permanent scarring or Hepatitis.

A video game is 'protected expression' as well. Your First Amendment specifically talks about 'expression' as having 'magic' protections, which is fair enough. Similarly, guns, alcohol and cars are not 'expression', they are ACTUALLY dangerous (and rightly proven so, unlike computer games) and so a level of control, especially to minors, is appropriate. Where that control ends may be somewhat random, but they aren't the same. Someone playing a computer game is really no different than someone reading a book or watching a film - (mostly) harmless. A pre-teen with a gun/bottle of beer/car? Hardly!

Personally, I'd say the Bible with its genocides, slavery and rape is a worse influence on children, along with all the indoctrination that goes along with it, but that's me as a zen taoist pagan Jedi ;)

Besides, California couldn't ban the sale of the Bible for the same constitutional reasons - that would be negatively favouring one (or more) religions, which the government cannot do.

What this comes down to is - do you want the government to be sticking its nose in where it has no business to be, wasting tax dollars enforcing something you yourself say that you could or would ignore, bloating the functions of government - or would you rather, as a responsible parent, work with your child to make sure that they have appropriate access to materials, and understand the repercussions of having/using them?

I can't believe how many people in the US complain about the over-reach of government, except when they want their own pet dislikes legislated against.

Re:

> And just think. If SCOTUS hadn't ruled in
> Citizen's United that a corporation has free
> speech rights, then the ruling in this case
> would not have had the grounding it does.

> How could a law banning violent video games
> violate free speech rights if the company
> that made the game didn't have those rights
> to begin with?

The courts have recognized the 1st Amendment rights of companies and businesses long before Citizens United. Hell, every newspaper and TV network is a corporation and their free speech rights were recognized for a century or more (at least in the case of newspapers) before Citizens United.

Re: Re: Good...

Is it wrong for the people to help those children with boundaries? I don't think so.

It's a sad day when we have to rely on Best Buy's new corporate policy regarding the voluntary refusal to sell to minors.

And there are other things Best Buy could do to help those children with bad parents, too. Maybe they could sit them down and give them some religious instruction at the checkout counter? How about some sex education too?

Re:

...alcohol and tobacco to kids, as well as driver's licenses, marriages and tattoos (and maybe guns - not sure).

And just how does the first amendment apply to any of those things? go ahead, explain please.

The issue is: "Does a state have the right to require parental consent before allowing the sale of a good or service to a minor?" If you take the violent video games out of the equation and simply consider that question, the answer has to be "Yes".

Um, no, that's not the question at all. The question is, do children have first amendment rights? The court said "yes." this is not limited to, or giving special status to, violent video games, as you suggest.

Minors are under the care and responsibility of their parents,

But not owned by them, those days are long gone in the US.

It was unconstitutional for the Supreme Court to violate California's sovereignty.

I've got news for you, the US Constitution is the supreme law of the land and trumps "California's sovereignty".

As a parent I have the right to take away a video game (or a Bible or ANYTHING) from my kid. How is taking it away from him later different from preventing it from being sold to him in the first place?

Are you really that dense? If you want to take a game away from your own kid, go for it. But if you want to pass a law allowing you to take it away form from other people's kids, then you've got a problem.

Instead, the Supreme Court has violated yours and my right to raise our kids and run our state in a manner we see fit.

No, they just took away some of your ability to raise other people's kids as you see fit.